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Farmers Fight EPA Over Proposed Water Rule

A federally proposed water rule has New York farmers and others around the nation up in arms. They see it as an attempt to regulate virtually all water, and warn if implemented, the measure will raise the phrase "red tape" to a whole new level.

The Environmental Protection Agency and the U.S. Army Corps of Engineers are advancing a plan released March 25th to greatly expand what they consider to be "waters of the U.S." under the 1972 Clean Water Act. The proposal calls for expanding federal authority to regulate land use activities around small creeks and streams, including pathways and ditches that only carry water during and immediately after rainfall.

New York Farm Bureau President Dean Norton says there's been an ongoing disagreement over the definition of "navigable," which the Supreme Court says means "any body of water that you can row a canoe down or that can be used for interstate commerce."   "The rule that EPA has authored and is looking for comment right now would change some of the sciences for the term 'navigable.' The EPA is now saying that, say, if Dean Norton has a depression in his field, and it holds water for more than four days, that is a navigable water, because water is going to link through  the topsoil into the groundwater below, and that groundwater through underground channels and streams could end up in a river that is used for commercial purposes."

Norton explains such land would then fall under EPA guidance...    "...and would require to get an EPA permit before we could till that soil, put tile in that soil, before we could possibly remove some hedgerows, and God forbid, maybe just tell us what we can and can't plant on that field."

Norton thinks the agencies are overreaching in their efforts to protect the environment and will impact more than 106 million acres across the country, requiring permitting and paperwork for routine tasks.  "This is also gonna require our local municipalities, towns, villages, counties, New York State... it's gonna require them to get permits any time they want a clean a roadside ditch or do any maintenance to a road and any of the other things we require of our municipalities."

Senior Policy Advisor to the Assistant Administrator for Water at the EPA Ellen Gilinsky counters the proposal does NOT affect agriculture and farmers have nothing to worry about.   "We have been going all over the country to try to talk to the farmers themselves to reassure them that all the exemptions that they have had from the Clean Water Act will continue."

The Supreme Court twice rejected EPA claims that any body of water becomes federally regulated by its mere existence. Gilinksy notes that in its most recent decision, the Court was divided.  "There was a majority opinion and a minority opinion and they asked us to clarify in plain English, what is meant by these waters, because the Clean Water Act never intended for 'Waters of the U.S.' to only be waters you could put a big boat in. It was intended to cover the tributaries in our country where we want to protect water quality for the use of our citizens. "

Gilinksy believes a lot of misinformation has been disseminated that there will be changes to exemptions and inclusions for agriculture that have always been there. "It does not change any of those."

The public comment period for the new proposed regulation has been extended until mid-October. "We will carefully go through all of the comments. We will respond to them. It's a very formal process that we do this in. And then we will put out a proposed final rule to go into effect. And in some cases, if there's changes that are - they call it a 'logical outgrowth' - if you make changes that are not a logical outgrowth of what was already in the proposal, then  you end up re-proposing it for another big comment period. I don't know if that's gonna happen or not. What we're hoping to do is to finalize the rule in the Spring of 2015."

Meanwhile, the New York Farm Bureau is forging ahead  with a "Ditch the Rule"*** campaign via social media, playing on the ditches angle, looking to the Obama administration to direct the agencies to come up with a more sensible plan that won't burden farmers and municipalities.

***  #DitchTheRule on twitter - WARNING : Only confirmed followers have access to @DitchtheRule's Tweets and complete profile. You will be asked to click the "Follow" button to send a follow request. Alternatively, you may follow @FarmBureau or https://www.facebook.com/AmericanFarmBureau ….

Dave Lucas is WAMC’s Capital Region Bureau Chief. Born and raised in Albany, he’s been involved in nearly every aspect of local radio since 1981. Before joining WAMC, Dave was a reporter and anchor at WGY in Schenectady. Prior to that he hosted talk shows on WYJB and WROW, including the 1999 series of overnight radio broadcasts tracking the JonBenet Ramsey murder case with a cast of callers and characters from all over the world via the internet. In 2012, Dave received a Communicator Award of Distinction for his WAMC news story "Fail: The NYS Flood Panel," which explores whether the damage from Hurricane Irene and Tropical Storm Lee could have been prevented or at least curbed. Dave began his radio career as a “morning personality” at WABY in Albany.
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